Swimming accident law: The basics

Published On: Aug 13 2013 03:04:22 PM CDT

Michel Meynsbrughen/SXC

It's that time of year when the 6 o'clock news leads far too often with the most tragic stories about childhood drowning deaths, near deaths and injuries. Recently, there was the news about the son of singer Usher nearly drowning in the family's pool.

The statistics are sobering. According to the Centers for Disease Control, every day, about 10 people die from unintentional drowning. Of these, two are children aged 14 or younger. Drowning ranks fifth among the leading causes of unintentional injury death in the United States.

To help parents better understand the complexities of these cases, THELAW.TV asked five questions about swimming pool liability to Orlando, Fla., personal injury attorney Shane Fischer:

1. Who is liable for injuries in a swimming pool?

It depends on who gets injured, how they were hurt, and who owns the pool. In Usher's case, had his son died or sustained permanent brain damage due to lack of oxygen, the pool manufacturer (and the drain manufacturer) might be liable if they knowingly built a drain without enough safeguards to protect children from getting stuck in it. Because these types of products liability cases are so difficult and are unique to each case, it really depends on what happens and why. If, on the other hand, a kid is running around the pool area irresponsibly, slips and falls and gets injured, then absent some argument that the pool surface area lacked proper friction, then the kid is likely out of luck. Additionally, if you drown in your own pool because you fall in as a result of a fainting spell, you're also out of luck, since there is no causal link between the pool construction and your fainting.

2. What should a homeowner do to limit their liability for injuries in their pool?

The single biggest thing you can do is to provide reasonable care to secure the pool. In this case, reasonable care means complying with local laws and ordinances regarding security.

This way, if a child sneaks into your backyard and into your screened back pool enclosure, then drowns in the pool, your liability will be limited or nonexistent if you can establish that you complied with all laws, got your pool inspected, etc. On the other hand, if you know that a child sneaks in, and more importantly know how they do it, you could be liable if you fail to take what the law says are reasonable steps to stop the child. For example, say you learn that a child learns the code to your backyard electronic access gate, you need to change the password. Alternatively, if the kid climbs or crawls through a hole in your screen to access your pool, then you need to get the hole fixed, otherwise you may be liable even if you follow other standard procedures, because the law will say you knew, or should have known, that the child could access your pool a number of different ways.

3. What if the injury was caused by the negligence of the swimmer?

Most likely you are off the hook. However, if you know the person swimming doesn't know how to swim, and you leave them alone, you may be liable for their injuries because you had advance knowledge that they lacked meaningful swimming ability. On the other hand, a homeowners association can be liable for injuries to a swimmer if the swimmer was part of an organized activity occurring on association property. Here's an example: One day I saw a van full of kids on summer camp pull into our community, head to the pool, and proceed to swim for a few hours. I was outraged because a homeowner gave the camp permission to swim in our pool as part of an organized activity. Our association wasn't insured for injuries that occurred as a result of an organized activity, and I immediately had the association inform the homeowner not to allow this activity anymore because we weren't insured for it.

As a result, if a kid got injured during this organized activity, the association would have had to pay the injured family directly, resulting in a special assessment against every homeowner.

4. Are the laws different for public swimming pools?

Absolutely. Community pools are held to a different standard because they are designed for public use, and as such, they need to have different safety precautions in place to accommodate a large number of swimmers, as opposed to your backyard swimming pool that is used by just a few people.

5. What about if there's a lifeguard or a "swim at your own risk" sign?

Merely posting a sign saying you are swimming at your own risk wouldn't eliminate the risk to the pool/drain designer in Usher's case, because the liability arises from the design of the drain, not from the swimming. But, in some cases, this kind of disclosure (a "swim at your own risk" sign) may relieve the pool owner of some liability.

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